https://new.kenyalaw.org/akn/ke/judgment/scc/2026/199

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT MALABA** **SCCCOMM NO. E094 OF 2026** **DISHON CHEROWO……………………...……….................................CLAIMANT** **-VERSUS-** **EVANS KIMTAI…………….……………….……….…….…………..1ST RESPONDENT** **ELIZABETH KISUYA…………………………………………………2ND RESPONDENT** **JUDGMENT** 1. Vide a statement of claim dated 21st July 2026 and filed in court on 24th July 2026 the Claimant prays for judgment in the sum of Kshs. 407,000/= together with costs of the suit. 1. The circumstances leading to the filing of this claim are that on diverse dates the Claimant advanced the Respondents jointly and/or severally Kshs. 370,000/= through Mpesa as a friendly loan. That the Respondents despite demand and notice of intention to sue having been served upon them failed and/or neglected to pay the sums due. The Claimant relies on Mpesa statements, transaction records, WhatsApp communications and demand letter to prove the debt. 2. The Respondents vide a Statement of Response dated 4th July 2026 admit the claim to the tune of Kshs. 350,000/=. The Respondents aver that Kshs. 20,000/= has been paid to the Claimant. The Respondents further aver that they are willing to settle the debt in monthly installments of Kshs. 20,000/= till payment in full. 3. This matter came up for mention for directions on 5th August 2026 when counsel appearing for the parties agreed to have the matter disposed of by way of Section 30 of the Small Claims Court Act. Parties were further granted leave to file submissions and the court reserved the matter for judgment on 13th August 2026. At the time of writing this judgment both counsel for the Claimant and the Respondent had filed submissions which I have read and considered. 4. The first issue for determination is ***whether the Respondents repaid any part of the Kshs. 370,000/= advanced by the Claimant, and if so, the amount thereof.*** 5. There is no dispute that the Claimant advanced the Respondents a total sum of Kshs. 370,000/=, which fact was expressly conceded by the Respondents. The Respondents in their Statement of Response, however alleged that they subsequently repaid Kshs. 20,000/=. No evidence was tendered to substantiate the alleged repayment. 6. It is therefore the finding of the court that the Claimant has proved on a balance of probabilities, that he advanced the Respondents Kshs. 370,000/= and that the alleged repayment of Kshs. 20,000/= was not proved. Accordingly, the outstanding principal sum remains Kshs. 370,000/=. 7. The second issue for determination is ***whether the Claimant is entitled to the Kshs. 37,000/= claimed as collection charges and legal fees in addition to costs.*** 8. The Claimant has sought Kshs. 37,000/= being collection charges and legal fees. While such expenses may have been incurred, an award of the same in addition to costs which has been sought would amount to double compensation for the expenses incurred in pursuing recovery of the debt. In so holding I am guided by the case of [**Aberdare Maize Milling Ltd v Julius Kiambati M’mbura [2020] KEHC 370 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/370/eng%402020-12-17) where J.Mshila held that: ***“Whether the costs in the sum of Kshs.10,000/= was properly awarded;*** ***this court notes that the trial court awarded the respondent the sum of Kshs.10,000/= for the demand letter and also awarded costs of the suit; this is tantamount to double compensation as ordinarily costs include search expenses; for this reason, this amount is found to have been improperly awarded;”*** 1. Further, the award of costs is a matter within the discretion of the court and must be exercised in accordance with the statutory framework and the overriding objectives of the Small Claims Court. Costs ought not to be converted into an automatic or additional award of compensation beyond what is justified by the circumstances of the case. 2. Accordingly, I decline the prayer for Kshs. 37,000/=. 3. The third issue for determination is ***whether the Respondents’ proposal to liquidate the decretal sum by way of installments should be considered at this stage.*** 4. The Respondents’ submissions have substantially addressed the proposed liquidation of the amount due by instalments. ***Section 36(1)(a) of the Small Claims Court Act*** empowers the court to order payment of a judgment debt either in a lumpsum or by instalments. However, ***Rule 27 of the Small Claims Court rules*** contemplates an application for payment by instalments upon issuance of a decree, supported by evidence demonstrating inability to satisfy the decree in a lumpsum. 5. In the present case, the Respondent has merely proposed instalments in submissions and pleadings and has not placed before the court evidence demonstrating inability to settle the decretal sum in lump sum. The proposal is therefore declined at this stage, without prejudice to the Respondents’ right to make an appropriate application under Rule 27 upon issuance of the decree. 6. On ***Interest,*** the Court has discretion to award interest as part of its determination. In the circumstances, and there being no demonstrated contractual rate, the court awards interest at court rates from the date of filing of suit until payment in full. 7. On ***Costs*** as already stated the court has discretion to award costs to the successful party. The Claimant shall have costs of the suit. 8. The upshot of my findings therefore is that: - 9. ***Judgment be and is hereby entered for the Claimant against the Respondents in the sum of Kshs. 370,000/=*** 10. ***The sum of Kshs. 37,000/= claimed as collection charges and legal fees is declined*** 11. ***The sum of Kshs. 370,000/= shall attract interest at court rates from the date of filing of suit until payment in full*** 12. ***The Claimant shall have costs of the Claim assessed at Kshs. 25,000/=*** 13. ***The Respondents’ proposal to liquidate the decretal sum by instalments is declined at this stage, without prejudice to the Respondents’ right to make an appropriate application under the Small Claims Court Rules upon issuance of the decree.*** **JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SMALL CLAIMS COURT THIS 13TH DAY OF AUGUST 2026.** In the Presence of Mr. Muyala for the Claimant and n/a for the Respondents Court Assistant: Paul Otieno **A.Z. OGANGE** **R.M/ADJUDICATOR** 13.08.2026